8
misrepresentations and/or material omissions of the relevant facts or law can instantly
“undo” an otherwise effective brief, waiving issues and arguments; it will certainly cast
doubt on your credibility, may draw sanctions [citation], and may well cause you to lose
the case!’ (Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter
Group 2010) ¶ 9:27, p. 9-8, italics omitted.) [Prometheus’s] brief . . . ignores such
instruction.
“[The] brief also ignores the precept that all evidence must be viewed most
favorably to [the Hjelms] and in support of the [verdict]. (Nestle v. City of Santa Monica
(1972) 6 Cal.3d 920, 925–926; Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875,
881.) . . . .
“What [Prometheus] attempts here is merely to reargue the ‘facts’ as [it] would
have them, an argumentative presentation that not only violates the rules noted above, but
also disregards the admonition that [it] is not to ‘merely reassert [its] position at . . . trial.’
(Conderback, Inc. v. Standard Oil Co. (1966) 239 Cal.App.2d 664, 687; accord, Albaugh
v. Mt. Shasta Power Corp. (1937) 9 Cal.2d 751, 773.) In sum, [Prometheus’s] brief
manifests a treatment of the record that disregards the most fundamental rules of
appellate review. (See 9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, §§ 365, 368,
421–424, pp. 425–426.) As Justice Mosk well put it, such ‘factual presentation is but an
attempt to reargue on appeal those factual issues decided adversely to it at the trial level,
contrary to established precepts of appellate review. As such, it is doomed to fail.’
(Hasson v. Ford Motor Co. (1982) 32 Cal.3d 388, 398–399.)”
And fail it does, as we deem the argument waived. (See Schmidlin v. City of Palo
Alto (2007) 157 Cal.App.4th 728, 738 [“Where a party presents only facts and inferences
favorable to his or her position, ‘the contention that the findings are not supported by
substantial evidence may be deemed waived’ ”]; Nwosu v. Uba (2004) 122 Cal.App.4th
1229, 1247.)